SZWAT v Minister for Immigration and Border Protection

b background 7 The appellant is a Sri Lankan citizen who arrived in Australia in July 2012 and subsequently applied for a Protection (Class XA) visa in November 2012. The application for a protection visa was refused by a delegate of the Minister in July 2013 and the appellant applied to the Tribunal for review of the delegate's decision in August 2013. Both written and oral material in support of the appellant's claim was received by the Tribunal. 8 Eventually, in January 2015, the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa. The appellant commenced proceedings in the Federal Circuit Court in January 2015, ultimately relying upon three grounds which were articulated in an amended application filed in March 2015. The grounds relied upon (and the bases upon which they were disposed of by the primary judge) can be summarised as follows: (a) Ground 1 asserted that the Tribunal fell into error when it asked the wrong questions regarding detention, and failed to assess the appellant's claim for detention. The primary judge found that this was not made out having regard to the Tribunal's findings at [24] and [44] of the Tribunal's reasons (TR). (b) Ground 2 alleged that the Tribunal failed to assess the appellant's claim of detention for illegal departure, or misconstrued s 91R of the Act. The primary judge found that this was not made out, having regard to the Tribunal's findings at TR [53]. (c) Ground 3 alleged that the Tribunal failed to consider the membership by the appellant of a particular social group, being young Tamil males in Sri Lanka and/or young Tamil males suspected of having links with an organisation known as the Liberation Tigers of Tamil Eelam (LTTE). Again, her Honour found that this was not made out having regard to the Tribunal's findings at TR [53].

c consideration 9 As should by now be obvious, the issue raised in this Court by the Notice of Appeal is narrower than as agitated below and focuses on the way in which her Honour dealt with Ground 1 below. Ground 1 before the primary judge was somewhat different to the appellant's contention as presently formulated, but, given the essence of the appellant's contention in the Notice of Appeal is that the primary judge fell into error in failing to uphold Ground 1 below, it is convenient, despite its length, to set out how this aspect of the argument below was dealt with at [20]-[29] of her Honour's reasons: [20] Ground 1 also asserts that the Tribunal did not deal with the applicant's "claim of persecution, ill treatment, such as working at the base, as a result of such random detentions and whether such forced tasks amounted to persecution". In support, the applicant stated that the Tribunal did not deal with what would happen to him if he was to return to Sri Lanka. [21] In the applicant's statement accompanying his protection visa application, the applicant made the following claim about being taken to "the base": "14. We soon realised that things had not improved for Tamils in Batticaloa despite the end of the conflict. In Batticaloa there are both military and police checkpoints. At these checkpoints if you are Tamil you are stopped and questioned. Even if there are no checkpoints the police or army will stop you and question you. I have to show my ID card and give my address. They say they do not believe me and take me to their base. They are all Singhalese. I am kept there all day. They ask me to work, clean for them in the base without any pay. This happened 3 times. I was not tortured like when I was younger but I was so frightened because of how I had been treated before." (Errors in original). [22] In its decision record, the Tribunal referred specifically to those claims. The Tribunal accepted that the applicant had been detained and released unharmed on three occasions between 2011 and his departure from Sri Lanka in 2012. [23] Ground 1 at Particular 1.3 asserts that the Tribunal did not deal with the applicant's claim that being forced to undertake tasks at the army base amounted to persecution. The first respondent conceded that the Tribunal did not make a specific finding in relation to that claim. However, the first respondent submitted that it was unnecessary for the Tribunal to make a finding on that particular matter, in circumstances where it was subsumed in the Tribunal's findings of greater generality (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ) ("WAEE"). [24] Whilst the Tribunal does not appear to have made a specific finding in respect of that claim, at paragraph 44 of its decision record, the Tribunal found that the applicant was not suspected of LTTE engagement or support. Additionally, the Tribunal was not satisfied that the applicant had a real chance of suffering serious harm in Sri Lanka as a suspected LTTE supporter. Paragraph 44 of the Tribunal's decision record is as follows: "44. The applicant's agent said "once a pro-LTTE imputation has been levelled against an individual in Sri Lanka, the consequences can be dire." However, even based on his own admission, neither the applicant nor any close family member had ever been associated with, or a supporter of, the LTTE. At any rate, the Tribunal is satisfied the limited interest (as elaborated at [17] & [24] herein) in the applicant by the Sri Lanka authorities/army after the cessation of hostilities in May 2009 is a clear indication he is not suspected of LTTE engagement or support. The applicant also conceded that after the war, neither he nor any family member was placed in any rehabilitation (or other) camp - and the Tribunal believes this to be clear evidence of the lack of any interest in him. Neither does the applicant have a profile in Australia (based on his claimed activities), that would suggest he may be banned on return." [25] The Tribunal did not accept that the applicant was of adverse interest to the authorities in Sri Lanka. The Tribunal concluded that the applicant was not at a real risk of serious or significant harm if he returned to Sri Lanka as required under s.36(2)(a) and s.36(2)(aa) of the Act. [26] It is well-established that the Tribunal is not required to refer to every single piece of evidence that an applicant may provide (WAEE at [46] per French, Sackville and Hely JJ). In my view, a fair reading of the Tribunal's decision record suggests that the issue of whether the applicant was made to work at the army base, and the consequences of that, were subsumed in findings of greater generality in accordance with the principles referred to in WAEE. [27] In any event, it is well-established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J). [28] The Tribunal's findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was "open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility" (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547). [29] Accordingly, Ground 1 is not made out. 10 For reasons that follow, the way in which the primary judge dealt with the relevant contention of the appellant does not reveal any error. 11 As was recently made clear by the Full Court in Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124; (2017) 346 ALR 669 at 703-704 [163] per Dowsett, Besanko, Middleton, Foster and Griffiths JJ, in considering the reasons of a tribunal (such as the Tribunal in this case), it is important to have regard to two general matters: First, the Tribunal is an administrative body and it is well settled that the reasons of such a body "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; 115 ALR 1 at 9; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; 136 ALR 481 at 490. Secondly, in circumstances where an allegation is made that a Tribunal has failed to consider an issue, it is necessary to bear in mind the observations of the Full Court of this Court in Applicant WAEE v Minister for Immigration and Indigenous Affairs (2003) 236 FCR 593; 75 ALD 630; [2003] FCAFC 184 at [47]: 47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 12 Both these points are relevant but the second point made by the Full Court has particular resonance here. On any view, the decision record of the Tribunal is not a superficial document; indeed, the reasons are comprehensive. Moreover, as the primary judge recognised, the reasons do deal with the appellant's return to Batticaloa in 2011 and also refer to the fact that, on occasion, the appellant was taken to a Sri Lankan army base where the appellant was kept all day and where he was asked to work and clean for the army, without payment, on three occasions. Further reference was made at TR [23] to the appellant being required to perform work. As the Full Court explained, an inference that a particular aspect of the appellant's case was not considered should not too readily be drawn where, such as here, the reasons are otherwise comprehensive and the issue has at least been identified at some point. 13 Again, as the primary judge noted, it is important to have regard to the reasons of the Tribunal as a whole. The Tribunal was not satisfied that the appellant had a political or other profile such that he faced a real chance of harm (TR [49], [57]), nor that the appellant's profile gave rise to a real chance of persecution, including as a failed asylum seeker (TR [64]-[69]). 14 Immediately before dealing with the question of whether the appellant had a well-founded fear of persecution, the Tribunal, in its summary of findings reproduced at TR [53], explicitly accepted that the appellant was detained and released unharmed, on three occasions, between 2011 and his departure from Sri Lanka in mid-2012. Despite the acceptance of this and the other findings identified in the same paragraph, the Tribunal correctly directed itself to the criteria in s 36(2)(a) of the Act and then recorded (at TR [55]): [The Tribunal] is not satisfied the applicant has a real chance of being harmed for this reason should he return to Sri Lanka. Return to Batticaloa in 2011 and later problems with CID: For reasons set out above (under the sub-heading Return to Batticaloa in 2011 and later problems with CID), the Tribunal is not satisfied that a Tamil male with the applicant's profile, has a real chance of coming to the adverse attention of the Sri Lankan authorities (or anyone else), for reason of being briefly detained, and released unharmed, on three occasions in 2011/2012. (Italics in original) 15 There is no substance to the only ground advanced by the appellant in the Notice of Appeal. As is evident from the reasoning of the primary judge extracted at [9] above, her Honour rejected the notion that the Tribunal had failed to address the appellant's claim that being forced to work at the army base amounted to persecution. The Tribunal at TR [24] and [55] disposed of the relevant claim in its entirety and it was open for the primary judge to conclude that the particular matter of the appellant having to work at the army base was, in effect, subsumed in the Tribunal's findings of greater generality (to the effect that the appellant was not of adverse interest to the authorities and was not at risk of future harm). 16 It follows the primary judge was correct to conclude that the Tribunal dealt with the appellant's claim (as it was required to do).

D conclusion and orders 17 The Notice of Appeal will be taken to have been filed within time, but the appeal must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.